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State v. Barnard8/10/2004
On October 27, 2002, around 2:25 a.m., Officer Tom Meilinger was on patrol in a marked squad car in Kimberly. While he drove west on Kimberly Avenue, Meilinger observed a vehicle approaching him. The vehicle, which was not being driven erratically or otherwise unlawfully, turned south onto Joseph Street. Meilinger turned south on an adjacent street. The other vehicle then turned west onto Kuborn Avenue, and Meilinger turned in the same direction. After that, the driver parked the vehicle and shut off the lights. Upon observing this, Meilinger drove past the vehicle. As he drove by, Meilinger saw the driver, later identified as Barnard, duck from his view.
. Meilinger continued down Kuborn and went around the block. There, he waited a few moments and listened for any activity or sounds that were out of the ordinary. After not hearing any activity, Meilinger drove back to Kuborn and again drove past the parked vehicle, this time in the opposite direction. As he drove by, Meilinger saw Barnard duck from his view for a second time. Meilinger turned around, parked behind the vehicle, activated his emergency lights, and requested assistance. During this time, Barnard remained hidden from Meilinger's view.
. When backup arrived, Meilinger illuminated the vehicle with a spotlight and used a PA system to identify himself and ordered the driver to sit up. After receiving no response and seeing no movement in the vehicle, Meilinger and a backup officer approached the vehicle. When Meilinger reached the passenger side, he saw Barnard kneeling on the front passenger floor and laying motionless on the seat. Barnard's face and hands were concealed.
. Meilinger attempted to get Barnard's attention but could not do so. Meilinger then kicked the passenger doorframe, which caused Barnard to finally look up. Meilinger ordered Barnard to show his hands and exit the vehicle. Barnard eventually complied, and Meilinger escorted Barnard to the rear of the vehicle to find out what Barnard was doing. From that conversation, Meilinger suspected Barnard was intoxicated. After Barnard failed field sobriety tests, Meilinger arrested him for operating while intoxicated.
. Barnard moved to suppress any evidence of intoxication, arguing that he was stopped without reasonable suspicion. The trial court concluded the officer acted reasonably pursuant to the community caretaker police function. Barnard later pled guilty to operating while intoxicated, fourth offense, and now appeals.
Discussion
. Barnard argues he was seized when Meilinger activated his emergency lights, because Wis. Stat. § 346.04(3) prohibits leaving the scene after receiving such a signal, and that the seizure was an unlawful stop because it was not predicated on reasonable suspicion. Further, Barnard claims the seizure cannot be justified on a community caretaker function, as Meilinger admitted he was not concerned about Barnard's safety when he activated the squad's emergency lights. Although the State nonetheless argues the seizure was lawful under the community caretaker function, we conclude there was reasonable suspicion to stop Barnard.*fn2
. The review of an order granting or denying a motion to suppress evidence presents a question of constitutional fact. State v. Hughes, 2000 WI 24, , 233 Wis. 2d 280, 607 N.W.2d 621. The trial court's factual findings will be upheld unless they are clearly erroneous but we independently apply the law to those facts. Id.
. The Fourth Amendment permits a police officer to stop a person for purposes of investigating possible criminal behavior. See Terry v. Ohio, 392 U.S. 1, 22 (1968). A legal stop requires that a police officer reasonably suspect that som
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